Delay in filing of appeal before the Commissioner (appeals) - condonation of delay - Reassessment of bill of entry - higher duty was paid due to wrong classification of import of natural rubber - Appellant has contended that the order of assessment, dated 26.08.2006, was erroneous, on the grounds that the imported goods are classifiable under CTH 4001 22 00 under CN 21/2002 Sl.No.491, which attracts duty at the rate of 20% + Nil + 2% + 4%, and at the time of assessment, the goods were classified .....

held in favour of the appellant. Consequently, the Civil Miscellaneous Appeal is dismissed. - Decided against the assessee. - C.M.A. No. 1161 of 2016 - Dated:- 15-6-2016 - S. Manikumar And D. Krishna Kumar, JJ. For the Appellant : Mr. N. Viswanathan For the Respondent : Mr. T. Chandrasekaran, CGSC JUDGMENT ( Judgement of this Court was made by S. Manikumar, J. ) Civil Miscellaneous Appeal is directed against the Final Order No.40100 of 2016, dated 25.01.2016, passed by the Customs, Excise and S .....

e grounds that the imported goods are classifiable under CTH 4001 22 00 under CN 21/2002 Sl.No.491, which attracts duty at the rate of 20% + Nil + 2% + 4%, and at the time of assessment, the goods were classified under CTH 400110.10, which attracts higher duty and at the time of assessment, the same was not noticed by them. The appellant has contended that when they opted for reassessment of bill of entry, the same was not accepted by the Deputy Commissioner of Customs (DEEC), Customs House, Che .....

ellant) against the order of assessment in B/E.No.283864, dated 26.08.2006, in case of import of Natural rubber SIR 20 . The revenue classified the goods under CTH 40011010 at a rate of duty of 70% BCD + 0% CVD + 2% CESS and 4% Addl. Duty. Part consignment was allowed duty free clearance under advance licence and the rest was cleared on payment of duty by cash. The appellants sought for reassessment of the Bill of Entry for change of classification to CTH 40012200. In the grounds of appeal and w .....

entertained, vide order, dated 26.07.2007, the Commissioner of Customs (Appeals), ordered as hereunder: I find that the order of assessment is dated 29.08.2006 and the duty was paid on 13.09.2006 whereas the appeal has been filed on 03.04.2007 in the instant case. As per Section 128 of Customs Act, 1962, any appeal before Commissioner (Appeals) is required to be filed within the statutory provisions of 60 days with a further condonable period of 30 days. The appeals in the instant case have been .....

st bill of entry but against rejection of reassessment by the department which is not justified. On perusal of copy of note sheet file which is marked as AC(EDI)/DC(EDI)/DC(Gr.7) on 20.02.2007, we find that appellant cannot agitate that this is an order and this was not issued to the appellant. Therefore, the appeal is filed against Bill of Entry and not against any letter or order issued by the AC. Accordingly, we do not find any infirmity in the impugned order. Commissioner (Appeals) has no po .....

entral Excise Act, 1944 r/w. Section 86(7) of the Finance Act, 1994, instant Civil Miscellaneous Appeal is filed, on the following substantial questions of law, (1) Whether the Tribunal was correct in traversing beyond the scope of the appeal filed by the appellant to hold that the note sheet challenged by them before the first appellate authority cannot be agitated as the same is neither an order nor issued to the appellant, when the said issue was not the subject matter of the order impugned i .....

various procedures to be ultimately denied justice? 3. Whether the decision of the tribunal is required to be set aside in the light of the authoritative pronouncements of the Bombay High Court in the case of Hero Cycles v. UOI reported in 2009 (240) ELT 490 (Bom) approved by the Hon'ble Supreme Court as reported in 2010 (252) ELT A103 (SC)? 4. Whether the tribunal committed judicial indiscipline in not following the decision of the coordinate bench in the case of Gabriel India Ltd., v. CC .....

ion Act, to an appeal, filed under Section 128 of the Customs Act, 1962. Section 14 of the Limitation Act, 1963, deals with exclusion of time of proceeding bona fide in Court, without jurisdiction and the said Section is extracted hereunder: (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of the appeal or revision, against the defendant shall be exc .....

ch proceeding is prosecuted in good faith in a count of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh su .....

sisting an appeal shall be deemed to be prosecuting a proceeding; c. misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. The said judgment rendered, with reference to Section 14 of the Limitation Act, cannot be made applicable to the facts of this case, for the reason that it is not a case of the appellant that they had prosecuted the appeal in some other Court or forum. 4. Perusal of the material on record shows that when the .....

t entertain 'OOC' cancellation for reassessment. 5. Thereafter, the appellant has preferred an appeal to the Commissioner of Customs (Appeals), Chennai, with delay. Though, before this Court, Mr.N.Viswanathan, learned counsel appearing for the appellant contended that the Commissioner of Customs (Appeals), has not properly appreciated the fact that the appeal was filed only against the internal memorandum, dated 20.02.2007, issued by the Deputy Commissioner of Customs (EDI), rejecting th .....

better understanding, Col.Nos.3 and 4 of the Appeal filed before the Commissioner of Customs (Appeal), are reproduced hereunder: 3) Designation and address of the officer passing the decision or order appealed against and the Date of decision or order The Dy. Commissioner of Customs, EDI, Custom House, Chennai 600 001. Against the assessment B.E.No.283864/36, 26.08.2006 TRB Challan No.98599328/13.09.07 4) Date of Communication of the decision or order Appealed against to the appellant 23.02.2007 .....

tant mistake and that therefore, the Tribunal ought to have condoned the delay, by applying the law laid down in the recent judgment of the Supreme Court in M.P.Steel Corporation v. Commissioner of Central Excise reported in 2015 (7) SCC 58, also cannot be countenanced, for the reason that admittedly, assessment has been made on 26.08.2006; refund application has been made on 23.12.2006; and application for permission to cancel OOC and re-assess the Bill of Entry, has been made only on 03.02.200 .....

e Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. (2) Every appeal under this section, shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf. 9. On the aspect, as to whether, the appellate authority is empowered to condone the delay of the extendable perio .....

the appeal, on merits, when such appeal was filed, after the expiry of 30 days, from the last date, on which, appeal should have been filed. The issue arose out of a decision of the Special Tribunal, which dismissed the petition, declining to condone the delay. While considering the scope of Section 31 of the Tamil Nadu General Sales Tax Act, 1959, a Hon'ble Division Bench of this Court, observed that Tamil Nadu General Sales Tax Act, 1959, clearly lays down that an appeal has to be filed w .....

da and another [2000 STC (Vol.119) 387] and Union of India v. M/s.Popular Construction Co., [2001 (4) CTC 213], a Hon'ble Division Bench of this Court has held as follows: (a) An appeal under Section 30(1) of the Tamil Nadu General Sales Tax Act, 1959 has to be filed within 30 days before the appellate Assistant Commissioner. The appellate Assistant Commissioner is empowered to condone the delay for further period of 30 days if sufficient cause for not presenting the appeal in time is shown .....

the explanation given by the assessee for not filing the appeal within the period prescribed under the Act, it cannot direct the appellate authority to consider the matter on merits as the High Court exercising jurisdiction under Article 226 of Constitution of India, cannot re-write the provisions of the Act. It is worthwhile to extract the reported judgments considered in Indian Coffee Worker's Co-op. Society Ltd.,'s case (cited supra), which are reproduced hereunder: In Mohd. Ashfaq v .....

ot less than 60 days before the date of its expiry. Sub-section (3) of that Section further provided that: " Notwithstanding anything contained in the first proviso to subsection(2), the Regional Transport Authority may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than 15 days after the said last date and is accompanied by the prescribed fee. " Thus, sub- .....

he Supreme Court held: " It is therefore, clear that sub-section (3) of Section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time-limit specified in the proviso to sub-section (2), but not more than 15 days late and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time. Now, the question which arises is .....

purpose was sub-section (3). Does sub-section (3) expressly exclude further extension of time under Section 5? If it does, then Section 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more th .....

isions of the Act (Section 58 of the Motor Vehicles Act of Uttar Pradesh), the wordings "condonable only if it is of not more than 15 days" are not there, the Supreme Court so held on the basis of the wordings employed in the provisions of the Act, which read thus:- "may entertain an application for the renewal of a permit after the last date specified in the said proviso for the making of such an application, if the application is made not more than 15 days after the said last da .....

y of the order is served. By virtue of the 8th Amendment Act 1986 which came into effect on 15/12/1986, the High Court may within a further period of forty-five days, admit a petition preferred after the expiration of the said period of ninety days, if it is satisfied that the petitioner had sufficient cause for not preferring the petition within the said period. In the said Ruling, a Division Bench of this Court held that the period prescribed in the statue ( local law) is clear and that furthe .....

That was a case arising under Andhra Pradesh General Sales Tax Act. In that case, the petitioner agreed for the proposed assessment and gave a letter of consent to that effect. However, long thereafter, the petitioner filed an appeal against the said assessment order with a delay of 533 days. The assessee in that case raised a contention that a turnover of ₹ 76,72,260/- representing the sale of oil extracted from oil cakes was subjected to a higher rate of tax unlike oil extracted from oil .....

e is a provision for condonation of delay and sufficient cause is shown, the appellate authority can condone the delay if it is satisfied with the reasons for the delay. The proviso to Section 19[1] as it originally stood empowered the appellate authority to admit an appeal after a period of 30 days, if it is satisfied that the dealer had sufficient cause for not preferring the appeal within the prescribed period of 30 days subject to the payment of the admitted tax due. Under the amended provis .....

he Limitation Act does not apply in view of express exclusion and scheme of the Act and delay beyond a period of 30 days after expiry of the original period of limitation cannot be condoned. It will be useful to quote in verbatim, the exact wordings employed by the Supreme Court, which reads thus:- " As far the language of Section 34 of 1996 Act is concerned, the crucial words are " but not thereafter" used in the proviso to subsection(3). In our opinion, this phrase would amount .....

, Jamshedpur reported in 2008 (221) E.L.T. 163 (SC), the Hon'ble Apex Court considered a case, wherein, the Commissioner dismissed the appeal on the grounds that it was time barred and beyond the period of 30 days from the expiry of period of 60 days, prescribed for filing the statutory appeal. The High Court dismissed the writ petition. Before the Supreme Court, arguments were advanced that even though the Commissioner has no power to condone the delay, in exercise of the powers, under Arti .....

is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid peri .....

ion clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. (iii) In Commissioner of Customs & Central Excise v. Hongo India .....

urt held as follows: 18) In the earlier part of our order, we have adverted to Chapter VIA of the Act which provides appeals and revisions to various authorities. Though the Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to Appellate Tribunal. Also an additional period of 90 days in the case of revision by Central Government has been provide .....

same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, (2008) 3 SCC 70 concluded that "the High Court was justified in holding that there was no power for condonation of delay in filing reference application." 19) As pointed out earlier, t .....

an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 day .....

at Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Cen .....

exclude the provisions of Section 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act, but by the provisions of the Central Excise Act relating to filing .....

ed) (iv) In Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission reported in 2010 (5) SCC 23, the question which arose before the Hon'ble Supreme Court, was whether, Section 5 of the Limitation Act, 1963, can be invoked by the Court, for allowing an aggrieved person to file an appeal, under Section 125 of the Electricity Act, 2003, after more than 120 days, from the date of communication of the decision of the order of the Appellate Tribunal for Electricity. In t .....

of Tribunal's order, in terms of the provisions to Section 125 of the Electricity Act, 2003, the Apex Court can extend the time to file an appeal to a maximum of 60 days only and the power under Section 5 r/w. Section 29(2) of the Limitation Act can be exercised for condonation of delay beyond the period of 120 days. Decision in Mukri Gopalan v. Cheppilat Puthuapurayil Aboobacker [(1995) 5 SCC 5] was pressed into service. Besides, a contention has also been made that, by virtue of the impugn .....

tent, which has prescribed a special limitation, for filing an appeal against any decision or order of the Tribunal. Reliance has also been placed on the decision of the Hon'ble Apex Court in Popular Construction Company's case (cited supra), Singh Enterprises's case (cited supra) and Hongo India Private Ltd.,'s case (cited supra). Section 125 of the Electricity Act, 2003, reads as follows: 125. Appeal to Supreme Court:- Any person aggrieved by any decision or order of the Appell .....

Sections 5 and 29 of the Limitation Act, 1963, are extracted hereunder: 5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) , may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact .....

tion 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce .....

ion of the Tribunal which can be filed within 60 days from the date of communication of the decision or order of the Tribunal. The limitation placed on the jurisdiction of this Court is that the appeal can be entertained only on one or more of the grounds specified in Section 100 of the Code of Civil Procedure. Proviso to Section 125 empowers this Court to entertain the appeal within a further period not exceeding 60 days, if it is satisfied that the appellant was prevented by sufficient cause f .....

r order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits etc. The use of the expression within a further period of no .....

on with a provision for further appeal to this Court and prescription of special limitation for filing appeals under Sections 111 and 125 is to ensure that disputes emanating from the operation and implementation of different provisions of the Electricity Act are expeditiously decided by an expert body and no court, except this Court, may entertain challenge to the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil courts (Section 145) qua an order made by an adjud .....

24 (inclusive) shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law. 32. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpret .....

Court to allow an appeal to be filed, under Section 125 of the Electricity Act, 1963, after more than 120 days. (v) In Gopinath v. CESTAT, Chennai reported in 2013 (32) STR 172 (Mad.), after considering the decision in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (SC)], this Court, at Paragraphs 16 and 17, held as follows: 16. In the order passed in Order in Original No.96 of 2009 dated 16.12.2009, appeal was filed before the Commissioner of Central Exci .....

y limitation. 17. It is well settled law that once the period of limitation has run itself out, the Appellate Authority does not have power to condone the delay in filing the appeal beyond the maximum period prescribed under the Act. Referring to Singh Enterprises case [2008 (221) E.L.T. 163 (S.C)], Tribunal has rightly dismissed the appeal. We do not find any infirmity in the order of the Tribunal and no substantial questions of law involved in this appeal and the appeal is dismissed. (vi) Albe .....

and set aside the order of the Commissioner (Appeals) in the interest of justice to offer opportunity to the Appellant to defend itself? Accepting the contentions of the learned counsel appearing for the Commissioner of Service Tax that the period of limitation prescribed for hearing of the appeal, by the Appellate Tribunal, under Section 85(3) of the Finance Act, 1994, cannot be extended, and after referring to the decisions in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [20 .....

tion of law, as to whether, the Tribunal ought to have condoned the delay and entertained the appeal, has been held against the appellant therein. There is no reason, as to why, the reported judgment cannot be made applicable to the instant appeal. (vii) In Saradha Travels v. Commissioner of Service Tax reported in 2015 (3) STR 433 (Mad.), an appeal was filed with a delay of one year and six months. The Tribunal dismissed the appeal. Adverting to the substantial questions of law, raised by the a .....

a, makes it abundently clear that the Commissioner of Customs (Appeals), the appellate authority, has no powers to condone the delay, beyond the extendable period and therefore, in the instant case, without adverting to the merits, appeal has been dismissed. CESTAT, Chennai, has concurred with the said decision. Perual of the material on record shows that the appellant, at the time of filing the instant appeal, has not raised any substantial questions of law, on the aspect of limitation. By way .....

ppellant herein to the benefit of the classification of the goods imported by them under Chapter Sub-Heading 40 01 22 00 to the Customs Tariff Act and the attendant benefit to Notification No.21/2002, dated 01.03.2002 (Serial No.191) resulting in collection of the excess duty from them amounting to ₹ 2,55,560/- without the authority of law, and therefore, in such a factual position the ratio laid down by the Hon'ble Delhi High Court in the judgment reported in 2010 (250) ELT 30 (Del.), .....

ed even by the quasi judicial bodies exercising powers under Section 128 of Custom Act, 1962, thereby failing to follow the ratio of the said judgment and finding fault with the Commissioner of Customs (Appeals) for not considering and disposing of the application for condonation of delay, dated 29.03.2007/03.04.2007 filed by the appellant? 11. In the foregoing paragraphs, we have already discussed about the inapplicability of the above reported judgment in M.P.Steel Corporation v. Commissioner .....